Saturday, June 19, 2010

KANISHKA DISASTER: SALIENT POINTS OF MAJOR COMMISSION REPORT (2)

B.RAMAN

( In 2006, the Canadian Government had appointed a Commission of Inquiry headed by former Supreme Court justice John Major to enquire into the crash of an aircraft of Air India named Kanishka on June 23,1985. The crash was caused by an explosive device suspected to have been planted in a piece of unaccompanied baggage by Sikh extremists belonging to the Babbar Khalsa headed by the late Talwinder Singh Parmar of Vancouver, Canada. The report of the Commission was released on June 17, 2010. The Commission has found that a "cascading series of errors" by the Government of Canada, the Royal Canadian Mounted Police and the Canadian Security Intelligence Service allowed the terrorist attack to take place.This is the second instalment of relevant extracts from the report)

Despite its awareness of the threat and of the identity of the potentialprotagonists who might carry it out, CSIS appears to have obtained littleimportant new information of its own about the Sikh extremist threat or aboutthe Babbar Khalsa or about Parmar from the fall of 1984 through to March of1985. The major reason for this gap lay in the state of the warrant approvalsprocess that had been put in place by the CSIS Act in June 1984.

On the ground, CSIS BC investigators were aware of the urgent nature of thethreat from Sikh extremism and of the inadequacy of their information resourcesto deal with it. They simply had no information sources of their own and hadbeen totally unsuccessful in recruiting sources within a Sikh community thatwas somewhat insular and vulnerable to intimidation by the extremists. Theysoon concluded that they needed surveillance and electronic intercepts in orderto be able to understand and respond to the increasing threat.

The institutional response to the request to approve a warrant to interceptParmar’s communications demonstrates a fi xation with form over substanceand, despite protestations to the contrary at the time – and subsequently,suggests a lack of appreciation of the reality of the threat.

The civilianization of CSIS was in part a reaction to RCMP Security Serviceexcesses in its investigation of the Front de Libération du Québec (the “FLQ”)and extremist Quebec Separatists. Under the RCMP Security Service, whileelectronic intercepts had required approval, the process was informal, simplyrequiring a request to the Solicitor General, the Minister responsible for theRCMP (and later also for CSIS). With the creation of CSIS, as one of the means toprotect civil liberties from unjustifi able intrusion by or on behalf of government,a new system of judicial supervision of certain intelligence operations wasinstituted, including a requirement for judicial approval for intercepting privatecommunications. This new protocol was to apply prospectively but also wasintended to cover existing intercepts that had been approved by the Minister.There was an explicit requirement that existing intercepts had to be reviewedinternally and approved by the Solicitor General and then by a judge of theFederal Court, all within 6 months of the coming into force of the CSIS Act, i.e. byJanuary 1985.

When added to the considerable stresses and strains that accompaniedthe rushed transition to CSIS from the RCMP Security Service, it was entirelyforeseeable that this warrant conversion process would be the source of addedpressure and potential misadventure. The foreseeability of the problems thatmight be caused by the requirement to devote considerable resources to theconversion process should have called for added care and attention to ensurethat the process would be capable of meeting new needs that would arise andnot just of preserving existing arrangements. Instead, the response of CSIS wasto prioritize existing warrants and to defer new applications, with the exceptionof only those deemed most urgent. As CSIS understandably would want to avoiddisrupting existing investigations, in theory, this process could be considered asensible policy; in practice, its eff ectiveness depended on the Service’s ability torespect the new needs that were more urgent.

The evidence before the Commission indicates that, despite the priorityafforded to the warrant conversion process, it was possible to secure a warrantin an extremely short timeline to respond to a perceived urgent priority, asoccurred in an area other than the threat of Sikh extremism. The protracted waitfor the processing of the Parmar warrant application either demonstrates anunthinking application of the concept of priority of existing warrants or, morelikely, refl ects the lack of appreciation of the true urgency of the threat of Sikhextremism.

Despite certifi cation by the existing chain of command in BC as well as by theHeadquarters counterterrorism hierarchy, and despite increasingly pointedmemoranda from the front lines in BC, the application for the Parmar warrantlay dormant for months while the conversion process went forward. Then, afterproceeding through multiple steps in the complicated, and still in fl ux, approvalprocess, it was further delayed for an additional month by what turned out tobe an irrelevant issue raised by the Minister’s Offi ce. Although the fi nal stepsleading up to the submission of the warrant to, and approval by, the FederalCourt proceeded relatively quickly, the total time from the request for a warrantto the date of approval was over fi ve months. This lengthy delay was entirelydisproportionate to the heightened threat and the demonstrated lack ofintelligence sources available to respond to it.

The subsequent course of the BC investigation confi rms the theme of inadequateresourcing and indicates that execution on the ground was not suffi cient for theseriousness of the threat being dealt with. Eventually the BC investigators did getapproval both for electronic intercepts and for physical surveillance coverage onParmar. As will be seen, the story of neither eff ort is particularly edifying. ( To be continued)